Trump’s War on Whistleblowers Goes Well Beyond His Unenforceable NDAs

The efforts to chill government accountability reach across the executive branch.

President Donald Trump speaks during a Greek Independence Day celebration at the White House on Thursday in Washington.

Mandel Ngan/AFP/Getty Images

One might expect the Trump administration’s escalating chaos to prompt more federal employees to blow the whistle on illegality and abuses, rather than waiting for Twitter-firings or special counsel Robert Mueller’s advancing probe. But widespread awareness of Trump’s eagerness to enforce nondisclosure agreements to silence unwanted speech, from Stormy Daniels to Steve Bannon, is one likely reason more workers are not speaking out.

Earlier this month, the Washington Post’s Ruth Marcusreported that Trump had senior White House staff members sign lifetime nondisclosure agreements barring them from revealing “confidential” information from their time in government.

This is not idle background noise. In January, the president’s personal lawyer sent former White House chief strategist Steve Bannon a cease-and-desist letter after Bannon told Fire and Fury author Michael Wolff that he viewed the actions of Trump’s son, Donald Jr., to be “treasonous.” This cease-and-desist was only one of the Trump administration’s most overt efforts to curtail the speech of federal employees.

These gags are shameless legal bluffs. Without explicit reference to the primacy of employees’ whistleblower protections, none are legal or appropriate.

These gags are shameless legalbluffs.

In 1978, 1989, 1994, and 2012, Congress unanimously affirmed or reaffirmed civil servants’ right to report information they reasonably believe shows mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health and safety, or a violation of any law, rule, or regulation.

Anti-gag laws have an even deeper mandate. Federallaw requires that any nondisclosure policies, forms, or agreements include explicit language noting that an employee’s statutory right to blow the whistle supersedes any free speech restrictions. Without that language, any federal activities to implement or enforce gags are illegal spending for illegal censorship.

The Lloyd–La Follette Act of 1912 also outlaws denial or interference with the right of employees to communicate with Congress, and appropriations law long has required future salary forfeiture for violators. If the rule of law matters, Attorney General Jeff Sessions’ memo barring employees’ communication with Congress and President Trump’s forcing his staff to sign an NDA also barring such communication, should trigger the loss of both their salaries.

Despite being unenforceable and illegal, these suppressive acts create a profound chilling effect on federal employees’ speech, counter to the intent and letter of the nation’s whistleblower protection laws.

Any effort to chill government employees from speaking hampers Congress’ ability to engage in oversight and threatens citizens’ right to know about abuses of power that betray the public trust. The administration must clarify that legal whistleblower rights trump its threats. Failure to do so will sow repressive confusion among federal agency employees about their free speech rights. It could also silence those employees who might otherwise choose to blow the whistle. Both outcomes are unacceptable.

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